Labour Disputes
Texto da decisão
REF FPSD-3760
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Felipe
Guedes Martins
COMPOSITION:
HENDEL Clifford J. (USA/France), Deputy Chairperson
DE MEDINILLA Gonzalo (Spain), member
GUTIERREZ Jorge (Costa Rica), member
CLAIMANT:
Felipe Guedes Martins, Brazil
Represented by Daniel Cravo Souza & Diego Eidelvein do Canto
RESPONDENT:
Club Blooming, Bolivia
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I.
Facts of the case
1.
On 1 February 2021, the Brazilian player Felipe Guedes Martins (hereinafter: the Claimant or
the Player”) and the Bolivian club Blooming (hereinafter: the Respondent or the Club) signed
an employment contract, valid until 31 December 2021 (hereinafter: the Contract).
2.
Clause 6 reads inter alia as follows (freely translated from original in Spanish):
“The Player shall count upon the following conditions during his active participation in the
Club
From January 2021 until December 2021, he shall receive the yearly salary of USD 44,000
payable in 11 monthly payments of USD 4,000 until the 15th day of the subsequent month.
USD 22,500 as bonus payable USD 2,500 upon signature and USD 20,000 45 days after the
signature.
USD 500 per month as housing allowance.”
3.
On 6 August 2021, the Claimant sent a notice to the Respondent requesting the payment of
the financial dues, to no avail.
4.
On 9 August 2021, the Claimant forwarded the previous notice sent on 6 August 2021, to
the Respondent’s Administrative Manager, and to the Bolivian Football Association
(hereinafter: FBF).
5.
On 25 August 2021, the Claimant sent a notice of termination to the Respondent.
6.
On 25 August 2021, the Claimant has signed an employment contract with the Brazilian club
Esporte Clube Novo Hamburgo (hereinafter: Novo Hamburgo), valid from 1 October 2021 to
31 December 2021.
7.
The monthly Player’s remuneration is Brazilian Reais (“BRL”) 2,290 (allegedly equivalent to
USD 406,40).
II. Proceedings before FIFA
8.
On 25 August 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
According to the Claimant, the Club never registered the Player before the FBF and before
the División Profesional de Fútbol of FBF. For this reason, and for an exclusively option or
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problem faced by the Club Blooming, the Player has been prevented to represent the Club
in official matches.
10. According to the Claimant, the Respondent only paid him the following amounts:
- First instalment of the signing-on fee: the Club performed the payment of USD 2,500.00,
in the beginning of February 2021;
- Salary regarding the month of February 2021: the Club performed the payment of the total
amount of USD 4,000.00, in three instalments:
(a) USD 1,000.00, on 29/03/2021;
(b) USD 2,000.00, on 15/05/2021;
(c) USD 1,000.00, on 19/05/2021.
- Salary regarding the month of March 2021: the Club performed a partial payment of USD
985.00, reason why it is still due the sum of USD 3,015.00.
11. The Claimant submits that the Respondent owes him the following amounts:
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12. The Claimant states that considering that: “(a) the amounts due by the Respondent to the
Claimant correspond to much more than two month of the salaries of the Player; (b) the
Respondent was formally put in default on 06 August 2021 towards the Claimant, for the
purposes of articles 12bis and 14bis, both of FIFA RSTP; and (c) the Club failed to pay the
remuneration due to the Player; the Claimant considered, on 24 August 2021, that the
Contract was terminated with just cause”.
13. The Claimant’s requests for relief are the following:
(a) Subject to the provisions of article 24.1 of FIFA RSTP, to admit the Claim and the
competence of FIFA DRC to judge it;
(b) to uphold the reasons invoked to terminate the employment contract with just cause, in
accordance with the provisions of the articles 14 and/or 14bis of FIFA RSTP;
(c) to condemn the Respondent to pay to the Claimant the net amount of USD 42,015.00,
plus interests of 5% per year since the date when each payment should have been done,
which corresponds to the following headings: (i) USD 20,000.00, regarding the second
instalment of the signing-on fee; (ii) USD 3,000.00, related to the housing allowance for the
months of February to July 2021; (iii) USD 3,015.00, regarding the remaining amount of the
salary of March 2021; (iv) USD 16,000.00, related to the monthly salaries of April to July
2021.
(d) taking into consideration (i) the content of article 17 of FIFA RSTP; (ii) that the employment
contract was terminated by the Respondent with just cause on 24 August 2021; and (iii) the
player’s monthly salary is USD 4,000.00; (iv) that the player’s housing allowance is USD
500.00, (v) that the employment relationship would expiry only in December 2021; to
condemn the Respondent to pay to the Claimant a compensation in the amount of USD
22,500.00, plus interests of 5% per year since the date when this payment should have been
done;
(e) impose to the Claimant the appropriate sanctions as provided for in paragraph 4 of article
17 of FIFA RSTP;
(f) to condemn the Claimant to pay contribution towards legal expenses.
b. Position of the Respondent
14. According to the Respondent, the Claimant terminated the contract at the beginning of
August, he is not entitled to receive any amounts which were to accrue thereafter nor the
housing allowance.
15. Regarding the compensation, the Respondent states that the parties did not agree a
compensation for breach of contract in the Contract.
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16. The Respondent further states that the Claimant was not registered for his low performance.
17. Regarding the singing on fee, the Claimant states that the fee of USD 22,500 was agreed for
a full calendar year and that the Claimant did not comply, terminating the contract
unilaterally. Hence, the correct would be to pay the prorrata amount.
18. Regarding the bonuses the Respondent states that the Claimant did not convince the
coaching staff and therefore did achieve the bonuses.
19. The Respondent underlines that it was unable to make the payments in full due because it
did not receive its financial entitlements from the Bolivian FA, the situation of economic crisis
and the limited 30% attendance to the stadiums.
20. Lastly, the Respondent states that as the Claimant signed a contract with a new club, he is
not entitled to any compensation.
21. The Respondent requests for relief were the following:
“We request to take into consideration the payments performed by our institution to the
player and that the player terminated the contract unilaterally and signed for the club Novo
Hamburgo, not being entitled then to the payment of the signing on fee, the salaries and the
housing allowance from August thenceforward.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 25 August 2021 and submitted for decision
on 24 February 2022. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
23. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player and
a Bolivian club.
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24. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition) and
considering that the present claim was lodged on 25 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
26. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the justice of the early termination
of the contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
28. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
29. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline of
at least 15 days for the debtor club to fully comply with its financial obligation(s).
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30. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the months of February to July 2021. Furthermore, the Chamber noted that
the Claimant has provided written evidence of having put the Respondent in default on 8
August 2021, i.e. at least 15 days before unilaterally terminating the contract on 25 August
2021.
31. The Chamber also noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties. Nonetheless, the Respondent confirmed the existence of such debts.
32. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
33. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
34. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to more than 5
monthly salaries under the contract, amounting to USD 42,015.
35. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. USD 42,015.
36. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
37. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player under the existing contract and/or the new
contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
38. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
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parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
39. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
40. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of USD 22,500 (i.e. the residual value of the contract) serves as the basis for
the determination of the amount of compensation for breach of contract.
41. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
42. Indeed, the player found employment with Novo Hamburgo. In accordance with the pertinent
employment contract, the player was entitled to approximately BRL 6,870, equivalent to
approximately USD 1,258. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of USD 1,258.
43. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
44. In this respect, the DRC decided to award the amount of additional compensation equal to
the amount successfully mitigated, i.e. USD 1,258.
45. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 22,500
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
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46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 25 August 2021 until the date of effective payment.
iii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
48. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
49. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
50. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
51. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
52. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
53. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Felipe Guedes Martins, is partially accepted.
2. The Respondent, Club Blooming, has to pay to the Claimant, the following amount:
- USD 42,015 as outstanding remuneration plus 5% interest p.a. as follows:
o
o
o
o
o
o
o
o
o
o
o
o
On USD 3,015 from 16 April 2021 until the date of effective payment.
On USD 4,000 from 16 May 2021 until the date of effective payment.
On USD 4,000 from 16 June 2021 until the date of effective payment.
On USD 4,000 from 16 July 2021 until the date of effective payment.
On USD 4,000 from 16 August 2021 until the date of effective payment.
On USD 500 from 16 March 2021 until the date of effective payment.
On USD 500 from 16 April 2021 until the date of effective payment.
On USD 500 from 16 May 2021 until the date of effective payment.
On USD 500 from 16 June 2021 until the date of effective payment.
On USD 500 from 16 July 2021 until the date of effective payment.
On USD 500 from 16 August 2021 until the date of effective payment.
On USD 20,000 from 19 March 2021 until the date of effective payment.
- On USD 22,500 as compensation for breach of contract without just cause plus 5%
interest p.a. from 25 August 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
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7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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